'This Week' Transcript: Leahy and Sessions

TAPPER: Hello again. Breaking this morning, the White House has
sent a letter to the National Archives, urging immediate release of
160,000 pages of documents from Supreme Court nominee Elena Kagan's time
in the Clinton White House. This comes as she heads to Capitol Hill
this week for another round of meetings to shore up her support as
Republicans increase her attacks against her.

Joining me this morning exclusively, chairman of the Judiciary
Committee, Democratic Senator Pat Leahy. He's at Lyndon State College
in Vermont, where he will give the commencement address later today.
And here with me in the studio, the top Republican from the Senate

Senator Leahy, I'll start with you. Just a quick question of
timing. When do you expect these confirmation hearings to begin, around
the end of June?

LEAHY: Well, I'm going to sit down this week with Senator
Sessions. We'll work out a time. I think her questionnaire will
probably come back in the next day or so, the questionnaire we sent from
the Senate Judiciary Committee, and we'll work out a time.

Her predecessor, of course, was confirmed in two and a half weeks
from the time he was nominated, Justice John Paul Stevens. I don't
anticipate that, but we have a pretty good track record. Chief Justice
Roberts and Justice Sotomayor ended up taking exactly the same amount of
time, and we can follow a schedule roughly like that, we'll be done this
summer.

TAPPER: While I have you, Senator Leahy, I want to ask you about an
essay that Elena Kagan wrote for the University of Chicago Law Review in
1995, in which she criticized Supreme Court confirmation hearings. She
said, they are, quote, "These hearings have presented to the public a
vapid and hollow charade in which repetition of platitudes has replaced
discussion of view points, and personal anecdotes have supplanted legal
analysis."

Didn't she have a point? Haven't these hearings become in the last
few decades a way for nominees to avoid answering questions on how they
will rule on a specific issue?

LEAHY: Well, for one thing, I talked to her about that essay. She
said I think I'm probably going to hear that quoted back to me a few
times during the hearing. I said, starting with me. But you know, it's
a doubled-edged sword. If you ask a nominee about certain burning
issues of the day, they are issues that are probably going to go to the
Supreme Court, and they have to be very careful not to say how they
might rule on a case that's coming up. Otherwise they're going to have
to recuse themselves and not be able to hear that case. On the other
hand, there's only 100 people who get to vote on this lifetime nominee.
We have to represent 300 million Americans, and so we have to ask as
good questions as we can to make up our mind just how we're going to vote.

TAPPER: Senator Sessions, what do you want to ask her? What are
you most interested in hearing from her?

SESSIONS: I think we'd like to know in a real honest sense whether
her philosophy of law is so broad in her interpretation of the
Constitution that you are not faithful to the Constitution and law. In
other words, a judge under their oath says you serve under the
Constitution, not above it. But we want to know whether she's
faithfully will follow it even if she doesn't like it. And she did
criticize a lack of specificity in some nominees. I thought John
Roberts struck about the right tone, perhaps even more open -- was more
open than Sotomayor, for example. So she's criticized the nominees and
the process for not being more specific. I think we'll be looking at
her testimony, because she has so little other record. This is going to
be a big deal. It's so important how she testifies.

TAPPER: You have expressed concern about a step she took when she
was dean at Harvard Law School, and she continued the policy of Harvard
Law School of keeping military recruiters from using the Office of
Career Services, although she did change that policy later in her tenure
there.

The White House has said she had great relationships with veterans
and with the military while dean. What's specifically your concern
about this issue?

SESSIONS: I have great concerns about that. That went on for a
number of years. It was a national issue. People still remember the
debate about it. She -- she reversed the policy. When she became dean,
they were allowing the military to come back on campus and had been for
a couple of years.

TAPPER: But they were always on campus, right? They just weren't
using the Office of Career Services.

SESSIONS: Well, look, yeah, this is no little bitty matter, Jake.
She would not let them come to the area that does the recruiting on the
campus. They had to meet with some student veterans. And this is not
acceptable. It was a big error. It was a national debate. Finally, we
passed the Solomon amendment. They really didn't comply with it.
Eventually, she joined a brief to try to overturn the Solomon amendment,
which was eventually rejected 8-0 by the United States Supreme Court,
and she was not in compliance with the law at various points in her
tenure, and it was because of a deep personal belief she had that this
policy, which was Congress and President Clinton's policy--

LEAHY: Well, this is like in Shakespeare, sound and fury signifying
nothing. She -- the recruiters were always on the Harvard campus.
She's shown her respect for the veterans there. She every year on
Veterans Day, she had a dinner for all the veterans and their families
who were there at Harvard. Recruiting went on at Harvard every single
day throughout the time she was-- she was there. She was trying to
follow Harvard's policy. She was also trying to make sure that students
who wanted to go in the military could.

Scott Brown, who is a Republican U.S. senator and a member of the
Active Reserves -- he's still in the military -- he met with her and
left and said he thought she had high respect for our men and women in
uniform, and he had no qualms about that.

I think, let's, you know, I realize you have so many special
interest groups on the far right or the far left who have points.
Ignore those. We ought to make up our own mind. We should be bright
enough to do it.

This recruiting thing -- if somebody wants to go in the military,
they usually find a recruiter. I mean, I don't think there was a
recruiting station on the campus when my youngest son went and joined
the Marine Corps. He wanted to join the Marine Corps. He had no
trouble finding a recruiter. And I think in this case, the recruitment
went on at Harvard all the way through. This really is trying to make
up something out of whole cloth.

SESSIONS: Jake, I don't agree. This is controversial at Harvard.
That's one reason she began to try to meet with military to try to
assuage their concerns. She disallowed them from the normal recruitment
process on campus. She went out of her way to do so. She was a
national leader in that, and she violated the law of the United States
at various points in the process.

TAPPER: Well, let's talk about the legal aspect of it, because
Chairman Leahy, Senator Sessions points out that when she was dean, she
joined a friend of the court brief suing the Pentagon effectively,
challenging this law, and it was rejected. That point of view and the
friend of the court brief were rejected 8 to nothing by the Supreme
Court. That includes Justice Ginsburg, Justice Breyer, Justice Stevens
saying Elena Kagan, you're wrong, your side is wrong. Now, it was just
a friend of the court brief, but doesn't that unanimous verdict
basically show that Kagan was expressing her political beliefs and not
looking at the rule of law?

LEAHY: You know, if we had -- if we said that any lawyer who ever
filed a brief at the Supreme Court, that they couldn't serve on the
Supreme Court because the case lost, half the members who are on the
Supreme Court today would not be on the Supreme Court.

She stated a position. She challenged the law. The law was upheld,
and she said we will follow the law at Harvard. I don't know what else
you could ask for.

TAPPER: All right, I want to move on to--

(CROSSTALK)

LEAHY: Laws are challenged all the time. That's why we have
appellate courts.

TAPPER: I want to move on to another matter. When -- during the
Bork hearings, Robert Bork, Senator Sessions, was asked about his
personal views of God, whether or not he believed in God. A lot of
people thought those questions went too far. In the last few -- in the
last week, we were told by the White House that after a blog post went
up at CBSnews.com that incorrectly said that Elena Kagan was not
straight -- and again, that is not true -- but Elena Kagan went to the
White House, said this is not true, I am straight. How far is too far
when looking into a nominee's personal life?

SESSIONS: I think you've got to be careful about that. I don't
believe that is a fundamental judgment call on whether a person can be a
good judge or not. We need to know how able they are to ascertain the
real legal issues in a case and deciding it fairly and justly. Will
they restrain their personal political views and follow the law
faithfully and serve under the Constitution? That's the fundamental
test in personal integrity. So those are questions that go to the heart
of whether a person will be an able judge or not.

TAPPER: OK, we only have a couple more minutes. I want to ask you
both about separate issues. Senator Leahy, on this program last Sunday,
Attorney General Eric Holder said that the administration was going to
push for changing Miranda rights. Are you concerned at all about the
civil liberty implications about delaying the time before Miranda rights
have to be read to a terrorist suspect?

LEAHY: Well, I sat down and talked with the president about this.
The question is not whether -- centered (ph) so much on civil rights one
way or the other, it's what a court will agree to. After all, it's the
Supreme Court that set down basically the rules of the Miranda.
Whatever changes might be made have to be made within the confines of
what the United States Supreme Court has already said. I think the
president and Eric Holder understand that.

Certainly there is an emergency doctrine which allows you if you had
taken somebody into custody who is a terrorist to continue to question
him for a period of time without them being presented to a magistrate or
being given the Miranda warning. And certainly in the last several
cases of people who have been apprehended, we have gotten tremendous and
are continuing to get tremendous information from those people.

TAPPER: Do you think the Miranda warnings and do you think these
rules need to be changed? It sounds like you don't.

LEAHY: I'm not saying that. I think you have to have maximum
flexibility within the rules, but the idea that you're going to be able
to pass a statute to change a constitutional ruling of the Supreme
Court, you can't do that.

TAPPER: Senator Sessions, I'd be remiss if I didn't bring up the BP
oil spill, given the fact that you represent one of the Gulf states.
Democrats are pushing legislation that would lift the cap on how much BP
has to pay for damages, not including the cleanup costs. They want to
lift it from $75 million to $10 billion. Republicans have been blocking
it. What is your position on this?

SESSIONS: Well, I've offered legislation -- supported legislation
to expand it also. But the BP people repeatedly stated at the hearing
and have told me personally, they are going to be responsible for all
legitimate claims that are made against them. So I think we need to
watch that closely. They signed as the responsible party. In other
words, when they got the privilege to drill in the Gulf, they said we
will be responsible for all damage to the beaches, all cleanup costs.
Then the question is, how far beyond that do they go and other
consequential economic or other damages. They have said they will be
responsible for paying them. They should have more than enough money to
pay them, and we expect them to pay every cent.

TAPPER: Senator Leahy, to sum up -- yeah, go ahead.

LEAHY: Jake, when the Democrats tried to put into law to make sure
they could be -- they'd have to pay for it, and that big oil everywhere
would have to pay for cleanup, Republicans filibustered and blocked
that. Frankly, this is something where Republicans and Democrats ought
to come together and not allow big oil to call the shots, but allow the
law to call the shots.

TAPPER: All right. That's all the time we have. Senator Leahy,
good luck with your commencement address. We'll all be watching.
Senator Sessions, thanks so much for joining us.

LEAHY: Thank you.

SESSIONS: Thank you. Good to be with you.

TAPPER: As our roundtablers take their seats, here are some
highlights from recent confirmation hearings, examples of what Elena
Kagan called, quote, "the real confirmation mess."

(BEGIN VIDEO CLIP)

CHIEF JUSTICE JOHN ROBERTS: I'm just absolutely prohibited from
talking about it.

JUSTICE SAMUEL ALITO: Can't answer.

JUSTICE SONIA SOTOMAYOR: It's difficult to answer that question.

ROBERTS: My ethical obligation not to comment publicly.

SOTOMAYOR: I understand the seriousness of this question.

ROBERTS: But I can't address that.

ALITO: That would be a disservice to the judicial process.

ROBERTS: Senator, again, that is a question I can't answer for
you.

(END VIDEO CLIP)

TAPPER: And joining me now, our all-star roundtable as always.
George Will, former Obama White House counsel, Greg Craig. Glenn
Greenwald of Salon.com. Former Bush White House Counselor Ed
Gillespie, and Helene Cooper of the New York Times. Thanks one and
all for being here.

George, I want to start with you with Elena Kagan. Is it safer
these days to pick a Supreme Court nominee who does not have much of a
paper trail?

WILL: Yes, that's the lesson that was learned from the Bork
hearing in late summer of '87, when in effect it was a constitutional
moment. Because after that, the meaning of advise and consent was
changed by the practice of the Senate.

Now, her paper trail, which hitherto had been five law review
articles, suddenly got an awful lot longer with access to the papers
she generated as part of the White House counsel. It won't matter
because when the same extension was made to bring Justice Roberts'
papers from his service in the White House into play, all he said when
something got controversial was, that was then, this is now. Then I
had a client. It was the president. As a judge, I won't have a
client.

TAPPER: Greg, you've known Kagan since 1989 when you both worked
together at Williams & Connolly, the law firm. But you also helped
shepherd the Sonia Sotomayor confirmation hearings successfully, and
Ed, you successfully did John Roberts. So I want to ask you, would
you give any different advice to her, other than keep it quiet, don't
answer questions as much as possible?

CRAIG: I think she'll try to answer questions as honestly and as
completely as she can. There is this rule, which I think should be
respected, that you don't comment on issues that are likely to come in
front of you. And that is the right way to have it, because people
that come before a court, litigants before the Supreme Court or other
courts, don't want to have the feeling that the judge that is ruling
on their case have already made up their minds.

So I think that response, which we saw with all those nominees,
declining to answer the question, it's a little bit stacked, Jake,
because that answer was the appropriate answer for many of the
questions that were asked about this or that issue. You don't want to
appear that you're prejudiced or predisposed to a decision. Rather
than coming to the court as you should, taking every case and every
different dispute for its own -- on its own terms.

TAPPER: Glenn, you've been one of the more critical voices from
the left about the Kagan pick. You want her to reveal as much as she
can.

GREENWALD: I think she absolutely should, and she herself said
that that ought to be the obligation of anyone who wants to acquire
the rather extraordinary power of being on the Supreme Court for the
next 30 to 40 years. And the really troublesome aspect is that this
is really a nominee about whom shockingly little is known. I mean, we
know less about Elena Kagan's beliefs and views than any successful
Supreme Court in recent -- Supreme Court nominee in recent memory.
And the reason is that she's advanced her career ambitions by
essentially avoiding taking any positions on most of the great
political and legal questions of the day. As the New York Times said,
she spent decades hiding her beliefs and her philosophy from public
view.

And I think that before you put somebody on the court and vest
them with the extraordinary power that she would have if she's
confirmed, the American people, regardless of where you fall on the
political spectrum, ought to demand that she divulge what her beliefs
and opinions about these great constitutional and legal questions are.

TAPPER: Greg, you look like you wanted to say--

CRAIG: That's totally -- she's lived a career that's really
extraordinary, that's been available for all people to watch and to
admire. She's a real trailblazer. She was the first woman dean of
the Harvard Law School, the first woman solicitor general. She has
performed this career in all three branches of the government.
And so, she has got experience and qualifications that are beyond
reproach. I mean, I cannot imagine a more qualified nominee in my
lifetime than Elena Kagan.

TAPPER: Ed, You're laughing. But I want to say you shepherded
one successful nominee, John Roberts. And you were also there for
Harriet Miers, not so successful.

GILLESPIE: Right.

TAPPER: She was also from outside the judiciary.

GILLESPIE: That's correct.

TAPPER: Faced a barrage of criticism, although she's no former
Harvard Law School dean. What similarities do you see with Elena
Kagan and either Roberts or Harriet Miers?

GILLESPIE: Well, Harriet Miers had a record of litigating. And
so we saw her, you know, representing clients. And one of the things
I think that we don't know about Elena Kagan is does she have capacity
to set aside her personal views and impartially apply the law or
represent the law? We have never seen her represent someone, for
example, in the way we saw Chief Justice Roberts during his time as a
trial lawyer, represent people who may not and cases that may not jive
with his own personal views, so we know he was able to put the law and
the rights ahead of that.

We have not seen that with Elena Kagan. And the fact is, she's
-- it's pretty thin gruel, in Reagan terms.

(CROSSTALK)

GILLESPIE: For, what, a year? And she was accredited for the
Supreme Court for that job, hadn't been there (ph) before that.

CRAIG: That's the number one litigating position in the United
States of America. She's litigating--

GILLESPIE: And (inaudible) she's the most qualified Supreme
Court nominee in your lifetime?

CRAIG: Well, certainly.

GILLESPIE: OK. Here's the fact is, I think she's going to have
to face a lot of questions because she's been in largely political and
policy advocacy roles, not really judicial roles.

GILLESPIE: And I think there are legitimate questions as to
whether or not her policy views; she's going to continue to try to
make policy from the bench. I think that's what Senator Sessions was
alluding to as the primary concern, I suspect you'll see, is President
Obama looking to put a political ally on the court to sustain a lot of
his agenda that's going to come before the court, likely, over the
next many, you know, five years, six years, seven years.

TAPPER: Helene, I want to play for you some sound. First is a
commercial from the Judicial Crisis Network.

(BEGIN VIDEO CLIP)

ANNOUNCER: Elena Kagan, who, as the dean of Harvard Law School,
kicked the military off-campus, incredibly, during a time of war.
When Dean Kagan...

(END VIDEO CLIP)

TAPPER: There's that, and then there is also this sound from
former House speaker Newt Gingrich, speaking last night at the NRA
convention in Charlotte, North Carolina. Here's Speaker Gingrich.

(BEGIN VIDEO CLIP)

FORMER REP. NEWT GINGRICH, R-GA.: She, as dean of the Harvard
Law School, took an effort to block the American military from the
Harvard campus, all of the way to the Supreme Court, during a war.
And that is an act so unbecoming an American that she should be
disqualified from the very beginning.

(APPLAUSE)

(END VIDEO CLIP)

TAPPER: Whoa. Now, I know the White House feels like she's
going to be confirmed. But it looks like Republicans are getting
ready for a big fight.

COOPER: I think we should be bracing for another version of, you
know, Hollywood on the Potomac. This is what we do here in this town.
And there's going to be a lot of Washington-produced drama in the next
few weeks, as Elena Kagan goes before the Senate.

But, at the end of the day, the reality is, there was no mystery
about this pick at all. People expected President Obama to go with
Elena Kagan and he did. She's been so thoroughly vetted. The White
House is feeling pretty confident at this point.

And you talk to people and they -- you know, they didn't -- they
feel like they didn't go with, you know, somebody who's way out there
on the left or anything like that. And they've been already passing
around e-mails and that sort of stuff to people like Scott Brown and
Susan Collins.

And they think they -- they pretty much seem to think they have
it in the bag. And I think, you know, we're going to hear a lot about
the gays in the military and Don't Ask, Don't Tell and what she -- you
know, her position at Harvard there. But, at the end of the day, the
reality is, you know, she's going to be going through.

TAPPER: George?

WILL: It is unfair to say that she kicked the military off
Harvard's campus. Harvard did that. It is as unfair for her to say,
as she repeatedly has done, that this is the military policy that
she's objecting to.

She's objecting to the law of the United States, passed by a
Democratic Congress and signed by a Democratic president in 1993.
Eighteen currently sitting Democratic senators voted for Don't Ask,
Don't Tell, including Harry Reid, John Kerry, Mr. Leahy, who is here
today, and no longer a senator, the vice president, Joe Biden.

GREENWALD: Let me just -- I mean, there are real questions about
Harriet -- about Elena Kagan.

(CROSSTALK)

(LAUGHTER)

GREENWALD: No, to compare her to Harriet Miers is ludicrous.
Her achievements -- Elena Kagan's achievements are vastly more
impressive, as are her abilities.

And this Don't Ask, Don't Tell controversy is a complete side
show to the real questions that are -- that should be asked. Because
many universities have as a policy that they don't allow employers
onto campus and use resources to recruit who can't certify that they
refrain from discriminating against some of the university students.
And that was the general policy that Dean Kagan applied in that
instance. It was a perfectly appropriate thing to do.

But let me just say, about her achievements, if you look at what
Democrats have said in the past, I mean, Patrick Leahy, when Sam Alito
was nominated, said, of course nobody contests his qualifications, but
a good resume is not enough; we have to know what his beliefs are.

And Barack Obama, when Harriet Miers was nominated, said we know
remarkably little about what she thinks about the great constitutional
issues of the day, and therefore she has to tell us what she thinks
before she should be confirmed.

And let me just ask Mr. Craig, who's a defender of hers and says,
well, she's one of the most qualified nominees ever, look at the great
legal issues that have confronted the court, Roe v. Wade; the issue of
gay rights, in terms of Bowers v. Hardwick; affirmative action; the
president's authority in the war on terror; even the efforts by the
administration now to reduce Miranda rights and other rights that
American citizens have.

Can you point to anything that she has said or written in the
past that would let Americans know what she believes about those
issues, how she views past Supreme Court rulings on those questions?

CRAIG: What you're arguing for here is a judge and only judges
should be on the Supreme court. And she's not a judge, so she doesn't
have the 17 years of writing opinions that Sonia Sotomayor does.

GREENWALD: But lots of law professors have written numerous
things about those questions. Has she?

CRAIG: She's written five or six law review articles. She
taught classes...

GREENWALD: So what has she said that would enable people to know
about those great issues that have confronted the country and the
court, anything?

GREENWALD: But you're defending her. Can you tell Americans
what she thinks about those things?

CRAIG: She's -- she is largely a progressive in the mold of
Obama himself, President Obama himself.

TAPPER: Let me ask a question. Because Glenn brings up -- we
only have a little bit of time left in this segment, but it seems
like, much like other -- perhaps John Roberts is a good example -- she
has been cautious, preparing for this day, and not taken big stances.

Of course, I -- you know, when she was dean of Harvard Law
School, maybe there were political considerations, being in that job.
But has she not been cautious, perhaps hoping for this day?

WILL: Well, it's the job of senators to chip away at her
caution.

Let me show you how they can do this. One of the questions would
be -- we're all interested -- what would she rule on the
constitutionality of the health care mandate that's being actively
litigated around the country?

I'd just ask her, "Ms. Kagan, is it constitutional, under the
commerce clause -- would it be -- for the federal government to
require people to take calisthenics? If not, why not?"

And I think, either the commerce clause is infinitely elastic or
it's not. Now, you can -- she couldn't dodge that by saying, well, I
can't -- that's currently being litigated. It's not, but it really
is, in another sense.

TAPPER: We have to take a quick break. We're going to have a
lot more on this. The roundtable will continue in a moment. And
later, the Sunday funnies.

(BEGIN VIDEO CLIP)

DAVID LETTERMAN, HOST, "THE LATE SHOW": It looks like the next
Supreme Court justice could be a New Yorker. Her name is Elena Kagan.
She has never -- here's the catch -- has never argued before a judge
before, but -- but, living in New York City, you know, she's argued in
cabs; she's argued in subways.

(LAUGHTER)

She's argued in delis. She's argued in her apartment.

(END VIDEO CLIP)

TAPPER: Coming up next, more of the "Roundtable" and the "Sunday
Funnies."

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DIANE SAWYER, ABC NEWS HOST: Crews moved into place with their
latest best hope for containing the spill. But even the experts say
they don't know if it will work.

UNIDENTIFIED MALE: How much work this environmental catastrophe
gets is riding on how well that huge steel containment dome works.

One of the issues that Elena Kagan might face, if she is
confirmed to the Supreme Court, Helene, is the fact that the Obama
administration seems to want to rewrite the Miranda rulings and how
much time they can have before they read the terror suspect his rights
or bring them before a judge. Why are they doing this?

COOPER: There are two reasons. There's political and then there
actually is the legal reason. On the second part first, the Miranda
-- the trying to rewrite Miranda, is really, I think not as big a deal
as the second thing, which is the presentation.

You know, there's only so much you can do with the Miranda rights
before the Supreme Court would become involved. You can twiddle
around with them a little bit but then at some point it would end up
at the Supreme Court and they would make a decision.

What the Obama administration really wants is more time before
they have to take a terror suspect before a court or before a judge.
There's the belief, among many people, in law enforcement that if that
interrupts the flow of getting a confession, it interrupts the flow of
getting information out of a terror suspect, actually physically
taking them to a court and taking them to a judge to become arraigned.
And that's where the administration would like to get a lot more time.

But then there's also the political which is, we've seen in the
past few months, two terror attacks on -- attempted attacks on
American soil with Abdulmutallab and now with Shahzad. And the
administration is very, very worried about after coming in to office,
saying that they are going to shut down Guantanamo of actually having
something actually happen here in the United States, looking as if
they haven't done enough about it. And I think that's a big part as
well.

TAPPER: Greg, why are they doing this?

CRAIG: Well I think there's concern that everybody has that when
you have a terrorism suspect in hand, the first thing you want to do
is to gather as much information from that individual as possible to
protect the public, either to find out if they are co-conspirators
working with them or plans for the future. So there's no dispute
about that.

The real question in my mind is whether the public safety
exception to Miranda is adequate, is flexible. Is there a real need
to change the Miranda rule in order to accommodate that requirement?
Let's just make it a given that you do want to have that interrogation
first and you don't want to be bothered by courts or Miranda rules.
And their only question is whether the public safety exception which
now exists is sufficiently flexible to accommodate that requirement.

TAPPER: Do you think it is?

CRAIG: I don't know what the administration is planning to do.
If the administration is planning to say we want 15 to 30 days without
any kind of due process, then I think that's going to be a hard sell.

GILLESPIE: I agree there's a legal and political calculus here
that's going on. The legal calculus I think is an understanding by
this administration which they should get some credit. They won't say
it out loud, but the fact is what they're doing is recognizing that
the handling of Abdulmutallab, the underwear bomber on Christmas Day
was not well done. And that they faced a problem in Mirandizing him
too soon and that hurt their ability to get information. So they are
trying to address that.

But the political problem they have is they don't want to embrace
the Bush regime and the Bush policies of setting up the enemy
combatant system. And you can prosecute or can hold a U.S. citizen as
an enemy combatant. We saw that upheld in the fourth circuit in the
Padilla case. But they don't want to accept that.

So they're looking for a political calculus here that somehow
addresses the problems they faced on Christmas Day but doesn't accept
the legal parameters of the Bush administration. That's a real
problem for them.

TAPPER: Glenn, what would the reaction be by the Democratic
Party if Attorney General Ashcroft had said he wanted to revise the
Miranda rules?

GREENWALD: That's the real issue. I mean, the Democrats,
including Barack Obama spent the last decade screaming and yelling
that what the Bush administration was radical and destructive because
they were rewriting our system of justice and our political culture in
the name of fears of terrorism. And what you've seen since Barack
Obama has been inaugurated is essentially the continuation of many of
those very same policies that he himself spent the campaign vehemently
condemning. But what's happening now is really quite remarkable,
which is those Bush policies that were so controversial were largely
aimed at non-citizens.

But the most recent terrorism controversies are now being aimed
at American citizens and the rights of American citizens. You have
the president authorizing an assassination program to target American
citizens.

TAPPER: One American citizen.

GREENWALD: There are three confirmed, one of whom we know. You
have the effort by Joe Lieberman and others to strip American citizens
of their citizenship, to deny them all rights. And now you have the
administration, the Obama administration, wanting to rewrite our core
protections of Miranda and being brought before a judge. And at some
point the American people are going to have to say, is the response to
every terrorist attack, attempted terrorist attack to ask which rights
do we need to give up now.

TAPPER: George?

WILL: I think you're right which is we don't actually know what
the Miranda doctrine means, particularly with the public safety
exception. Obviously there's an extreme here, 15 days, 30 days.
There's two hours, here's too little. There's play in the joints as
you like to say. Why don't we just let it play out?

TAPPER: All right, well let's move on -- speaking of playing
out, let's move on to politics, because we have great races for
political junkies playing out especially as a former Pennsylvanian, I
know Ed, you as well, there's I have to say a bizarre race going on in
Pennsylvania right now.

Here is a fun little mash-up from the Web site "Talking Points
Memo." It is a combination of Arlen Specter's TV ad, who used to be a
Republican in 2004 with his ad now in 2010.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: President Obama and newspapers across
Pennsylvania agree, Arlen Specter is the real deal.

UNIDENTIFIED MALE: Specter, Bush.

GEORGE W. BUSH, FORMER PRESIDENT OF THE UNITED STATES: Arlen
Specter is the right man for the United States Senate.

OBAMA: He came to fight for the working men and women of
Pennsylvania.

TAPPER: First of all, George, why would any Democrat vote for
Arlen Specter?

WILL: That's an excellent question. In his fifth term as a
Republican senator at age 79, he had an epiphany which was that he's
really a Democrat. Now when he did, to his credit, it was agreeably
free of any pretense of principle. He said I'm going to lose unless I
change.

He's going to lose anyway is what it comes down to because this
is the last year that you want to be "A" an incumbent, "B" an
opportunist, "C," sort of flagrantly without conviction.

TAPPER: Ed, if you were Pat Toomey, the Republican senatorial
nominee in Pennsylvania, would you rather run against Arlen Specter or
the legitimately progressive Democratic challenger, Congressman Joe
Sestak?

TAPPER: Who is a tougher general election candidate?

GILLESPIE: Tough question. I think Specter is obviously
eminently beatable. And I agree with George, he's so eminently
beatable, he's about to be beat in his primary. And that will leave
Sestak.

Sestak is very much to the left of Pennsylvania, which, for a
northeastern state, actually, has a lot of conservative leanings, and
I think he's going to have a very tough time in the general election
as well.

So I don't think that obviously Toomey is not going to have a
choice and I expect it's going to be Sestak at the end of the day,
because Arlen Specter is clearly out there, you know, in the middle of
the road with yellow stripes and dead armadillos, as they say.

TAPPER: Glenn, you see this, and specifically President Obama's
endorsement of Arlen Specter, as a larger institutional problem in
Washington.

GREENWALD: Well, Washington basically exists to perpetuate the
power of incumbents. And so it's extraordinary to watch. Arlen
Specter, who was a Republican, and a fairly loyal and devoted
Republican. He helped the Bush agenda in all sorts of ways, be
supported by the White House. People who gave money to the Democratic
apparatus are having that money diverted or directed to someone who
spent their life in the Republican Party and to try to defeat an
actual Democrat a real progressive. And that's what Washington does.
It perpetuates the power of incumbency, and that's why the American
people are so largely cynical about what takes place in the city.

TAPPER: Arlen Specter is not the only one facing a tough
Tuesday. In Kentucky, the secretary of state, Trey Grayson, is facing
a challenge from Rand Paul. He is the son of Congressman Ron Paul,
and even though it is an open seat, Grayson is the secretary of state,
so he's seen as the establishment candidate.

Here's the campaign ad he is running against Rand Paul, who is a
Tea Party candidate.

(BEGIN VIDEO CLIP)

(UNKNOWN): We live in dangerous times.

But not in Rand's world. Rand wants to decriminalize dangerous
drugs. Rand Paul even questions whether Afghanistan poses a threat to
the U.S., and supports an immediate withdrawal from Iraq.

Rand's world. Wild, wacky and dangerous.

(END VIDEO CLIP)

TAPPER: George, if Rand Paul wins on Tuesday, I would think, if
I were the Democratic candidate, I would just run Trey Grayson's ads.
But can Rand Paul win?

WILL: Sure. I mean, look, there's a question as to whether or
not they know how to poll in Republican primaries in Kentucky, because
they haven't had that many hotly contested ones. The polls are 15
points apart at this point. But it seems to me --

TAPPER: With Grayson?

WILL: Grayson has polls that he says that show him tied. And
it's McConnell's poll taker who has been doing these things.

TAPPER: McConnell has endorsed Grayson.

WILL: And the voters will sort this out. But you know, it seems
to me when Ron Paul -- Rand Paul says, it's not clear that Afghanistan
is crucial to our security, a lot of people in Kentucky probably say,
that's not crazy, that's a sensible view.

TAPPER: Do you think this is an example of the Tea Partiers
flexing their muscles yet again? What's going to happen, do you
think?

CRAIG: Well, it's not my party, and I haven't been following as
closely as your other guests here. But it seems to me a repeat of
what happened in Nevada with Senator Bennett.

TAPPER: Utah.

CRAIG: I mean, sorry, Utah, with Senator Bennett, a long-
standing incumbent who is thrown out in the Republican convention.

TAPPER: Is that how you see it, Helene?

COOPER: I think the whole -- this whole thing about this is a
referendum, and this shows a test for the Tea Party. I think that
might be a little overstated, because the reality is Rand Paul, a lot
of his backing comes, and a lot of his stature comes from his father.
I mean, he comes from a huge political background with Ron Paul, and I
think a lot of that might be about Ron Paul and not necessarily the
Tea Party.

TAPPER: Ed, you're the Republican here, what's going on here?

GILLESPIE: Well, I wouldn't bet on this primary, but I would bet
on the general election in Kentucky. In 2010, who -- remember the
nominee that emerges from the Kentucky Republican primary is going to
be the next senator from Kentucky. That's the environment that we are
in today. There is clearly an anti-establishment sentiment at play,
both in the, by the way, the Republican and the Democratic primaries.
We see this going on in Colorado and Arkansas with Democrats, as well
as in Utah, and with -- you know, if you concede that Grayson is the
establishment candidate in Kentucky there.

But the fact is, at the end of the day, the only thing that's
more dangerous than being an incumbent today is being a Democratic
incumbent today. And that's going to be the case come November.

TAPPER: Speaking of Democratic incumbents, Glenn, you were
responsible for forming a group that helped recruit the challenger
that Senator Blanche Lincoln, the Democrat from Arkansas, is facing,
Bill Halter. What is the dynamic there? Some people are saying this
is a Democratic purge of a moderate Democrat in a state where only
moderate Democrats can win?

GREENWALD: Well, that's what people always say every time there
is a primary. I mean, in Connecticut, when Democratic voters decided
they didn't want Joe Lieberman representing them anymore, the claim
was, oh, the far left has taken over the Democratic Party.

The reality is that people in Washington, the political class,
tend to be very hostile to primaries because they threaten incumbent
power. The reality, though, is that it's the ultimate exercise in
democracy. And the people of Arkansas should be able to decide
whether they want a senator like Blanche Lincoln, who has been
subservient to lobbyists and corporate interests her whole career,
continuing to represent them. And I think the real issue is that the
opposition that the American citizenry has in great numbers to the
political class in Washington on a bipartisan basis is justifiable,
given everything that the political class has done. And that ought to
be the focus, is why Americans so dissatisfied with what's going on in
Washington.

WILL: I think we have a recruit to the term limits movement.
No, unquestionably, it seems to me, primary challenges are wholesome
and healthy. I just don't see anything wrong with this. That's why
you have primaries.

TAPPER: But you also think that races like the one we're seeing
in Arkansas don't get as much attention by the media class, because --

WILL: It doesn't fit the narrative. The narrative is
Republicans are intolerant, not least to one another, and there's a
civil war in the party, et cetera, et cetera. It's going on in the
Democratic Party as well, for which we have you to thank, I guess.

TAPPER: Let me switch to another actual civil war or potentially
in Afghanistan. Hamid Karzai came to the White House this week, and
it was after a very rough month that had existed between President
Obama and Karzai, but they put on a good face. Here's a little clip
from that visit.

(BEGIN VIDEO CLIP)

OBAMA: With respect to perceived tensions between the U.S.
government and the Afghan government, let me begin by saying, a lot of
them were simply overstated.

HAMID KARZAI, PRESIDENT OF AFGHANISTAN: It's not an imaginary
relationship. It's a real relationship. There are days that we are
happy, there are days that we are not happy.

(END VIDEO CLIP)

TAPPER: Helene, we're going to probably have some days that
we're not happy ahead of us, right, with what's going on in Kandahar,
with what's still not necessarily completed in Marjah. Were the
tensions overstated?

COOPER: Of course not. A lot of these tensions were generated
by the administration itself. And don't forget, you know, for some
reason, it didn't seem to come up in the past week while Karzai was in
town. This is a man who threatened to join the Taliban a month ago
when he said that he was under too much pressure from the West. These
perceived tensions that President Obama talked about were coming from
his -- well, his own administration, his ambassador to Afghanistan,
General Karl Eikenberry, with the famous diplomatic cable saying that
President Karzai is not an adequate strategic partner.

So these tensions are definitely real. The White House now is
trying to -- because Karzai has responded so poorly to the efforts of
pressuring him, are switching now to a more be-nice strategy.

But the underlying -- the fundamental tension remains, which is
that even after the U.S. military went into Marjah, which is a pretty
sleepy hamlet, to clear out the Taliban, there was no Afghanistan
government there to roll out. They talk about this government in a
box, and this one administration official was joking with me and
saying they opened the box and there was only one guy standing there.
There's not really an Afghan government in this point and place.

And so you can't even secure, you know, clear, build and hold
Marjah, which is a much smaller place, and now we're talking about
going to Kandahar, which is the cultural heartland of the Taliban.
It's so much more complicated. You know, you can see some real
problems ahead.

TAPPER: We only have a couple of minutes left. But Ed, you've
actually been in meetings with Karzai and President Bush. What is
Karzai like?

GILLESPIE: He is a very cagey and shrewd person. And look,
there's always tensions. We're a country with troops in his country.
There are casualties, civilian casualties that occur from time to
time. There's going to be tension. And, you know, but in the Bush
administration, we kept those in the private channel, or at least
below the radar. And you know, this administration, I think, got out
there way too far too fast, and they had to scurry back. Because as
they look around, you know, as you said, there is not a lot else there
in Afghanistan other than Karzai to be helpful.

TAPPER: George, we only have one minute left. Is Karzai our
ally?
WILL: Yes. We've baptized him that, and that's all we've got is
Karzai, which matters. Given the fact that clear, hold and build --
we clear areas because the Taliban clears out. They know that we're
going home. They know that they are home. Build, you can't build if
you can't hold. You can't hold if you're coming home.

Half of the surge, small surge of 30,000 troops, has now arrived.
The full surge will not be there until August. Eleven months after
that, we are scheduled to begin the withdrawal. Now, if you're an
Afghan citizen and you are asked to side with the Karzai government,
what do you do? You are going to side with people who are sponsored
by an American forces that are coming home.

TAPPER: All right, well, the roundtable will continue in the
green room on ABCNews.com. And later, check out our fact check.
"This Week" and Politifact have joined together to fact-check our
newsmakers, only on "This Week."